Judgment:
1. Both the captioned appeals are directed against the common Order-in-Original No. 50/84 dated 2.7.84 passed by the Additional Collector of Customs, Delhi Airport, Delhi absolutely confiscating the seized goods and also imposing various penalties on both the appellants as well as on Shri Manohar Singh and Shri Hans Raj.
2. Brief facts of the case so far as relevant for the purpose of these appeals are that on 15.5.80 the Customs officers concerned intercepted both the appellants - holders of Indian Passports. As a result of examination of the baggage of appellant Avtar Singh, miscellaneous goods of foreign origin collectively valued at Rs. 20,186/- in addition to old and used clothes were recovered. Since the appellant Avtar Singh could not produce any proof of the lawful import of the said goods the same were seized by the Customs Officers under Section 110 of the Customs Act on the reasonable belief that the same had been imported into India illicitly in contravention of the provisions of law. On examination of the baggage of the appellant Smt. Mohinder Kaur, comprising of one attache case and one big hand bag, miscellaneous goods of foreign origin collectively valued at Rs. 30,200/- in addition to old and used items were also recovered and likewise the same were also seized. Statements of both the appellants were recorded. After the usual investigation, it was found that the seized goods were not the bonafide baggage and as a sequel thereof show cause notices were issued to the appellants calling upon them to show cause as to why the seized goods be not confiscated and why penalty be not imposed. Similar notices were also issued to Shri Manohar Singh and Shri Hans Raj as it had come out during the investigation that they were also involved in these nefarious activities. In reply to the show cause notice both the appellants stated that the goods under seizure did not belong to the appellants; that these goods were recovered from a Taxi in which the appellants had taken their seats at Delhi Airport to go to the city. It was candidly stated that none of the goods belonging to the appellants was seized by the officers of Customs. It was further stated that two persons who were already in the Taxi before the appellants took their seats therein escaped on seeing the officers of Customs presumably leaving the goods behind in the Taxi and the Customs officers planted the recovery of the said goods on the appellants. Shri Manohar Singh in reply to the show cause notice denied the allegations and stated that he did not know the appellants. It was candidly stated that it had been wrongly stated by the appellant Avtar Singh that Manohar Singh's son delivered the goods to the former in Bangkok and that he had no son residing in Bangkok. However, no reply to the show cause notice was filed by Shri Hans Raj. After the usual enquiry, the Adjudicating Authority found that the seized goods in question were recovered and seized from the possession of the appellants and that the said Manohar Singh abetted the acts of the appellants and the said Hans Raj was concerned in carrying, removing, keeping, selling or purchasing of the goods in question which he knew or had the reason to believe that the same were liable to confiscation under section 111 (d) of the Customs Act. Accordingly it absolutely confiscated the seized goods and also imposed the various penalties as stated above. ' 3. At the outset, we mention that the said S/Shri Manohar Singh and Hans Raj are not before us and therefore we are not concerned with them.
4. We have heard Shri Harbans Singh, learned counsel for both the appellants and Shri Shishir Kumar, learned SDR for the respondent.
5. Shri Harbans Singh, learned counsel for the appellants vehemently contended that the goods in question never belonged to the appellants and were not recovered from the possession of either. Consequently, he submitted that the penalty is also liable to be set aside. Shri Shishir Kumar, learned SDR supported the impugned order.
6. While elaborating his arguments Shri Harbans Singh, learned counsel for the appellants submitted that the panch witness Bharat Bhushan does not support the case of the Department and his version regarding the incident is cryptic one. He also submitted that Shri J.N. Bhatia, Inspector who was cross-examined during the adjudicating proceedings also belied the version of the Department. He also laid much importance on the fact that no 'tags' were found on the packages in question. He also submitted that the confessional statements attributed to the appellants were not voluntary. In nutshell, his argument was that the Department has miserably failed to connect the appellants with the recovered contraband goods. After giving our due consideration to the arguments of the learned counsel for the appellants, we find that none of the contention of the learned counsel for the appellants has any force. To begin with, it is wrong to say that Bharat Bhushan was the only panch witness who was produced by the Department for cross-examination. From the impugned order we observe that it was the counsel for the appellants who himself after cross-examination of Smt.
Pukhraj Kaur on 18.8.83 stated that he did not want to cross-examine the other witnesses. It deserves to be mentioned here that unlike the procedure laid down for leading evidence in criminal courts according to which a witness is first examined by the prosecution and his statement made on examination-in-chief is recorded before he is subjected to cross-examination, no such procedure is prescribed for customs adjudication proceedings. In other words, witnesses are not examined by the Department and only cross-examination in these proceedings is allowed to meet with the principles of natural justice and equity whenever such prayer is made. Thus, if the appellants wanted to cross-examine any other witness or witnesses in addition to the witnesses who were cross-examined, it was the duty of the appellants to have made such a request to the Adjudicating Authority. But instead the appellants' counsel stated that he does not want to cross-examine the other witness or witnesses. It is true that there is some discrepancy in the cross-examination of the panch witness Bharat Bhushan, but these discrepancies or so-called contradictions are no guarantee of truth.
His testimony does not belie the case of the Department. He has specifically admitted his signature in the panchanama and whatever discrepancies regarding the time or the manner have come out in his cross-examination may be the result of the lapse of time. It deserves to be mentioned here that in ground No. 6 of the Memorandum of Appeal, the appellants themselves have stated that the testimony of Shri Bharat Bhushan "did not inspire confidence. The improbabilities and the evasiveness in the statements rendered the evidence totally unreliable." Thus, alternatively even it is assumed for the sake of arguments that the testimony of the said Bharat Bhushan is totally unreliable and does not inspire any confidence and therefore should be discarded while appreciating the evidence on record, we find other evidence on the record to connect the accused which we shall discuss here-in-after. The contention of the learned counsel for the appellants that Shri J.N. Bhatia has admitted in his statement that the first thing done after the two passengers were brought to the room was to call two witnesses and therefore this belie the version of the Department also cannot be accepted. It is trite law that while appreciating the evidence of a witness, his statement is always read as a whole and a stray sentence here or there cannot detract the veracity of the statement. So read, we find nothing in the statement of Shri Bhatia to conclude that this stray sentence belies the case of the Department particularly when he has admitted the fact that the incident took place as alleged by the Department. As regards the contention of the learned counsel for the appellants that no 'tags' were found on the packages, it would be suffice to Say that it is the case of the Department that the appellants were intercepted outside the Air Port when they were going towards a Taxi parked outside the International Arrival Hall along with their baggage. Thus, absence of the 'tags' on the packages does not help the appellants, rather it goes to indicate that the appellants must have removed or destroyed these tags to avoid detection. As regards the contention of the appellants that the confessional statements made by the appellants were not voluntary, it would again be suffice to say that there is nothing on record to show that they were made under duress except the bald assertions of the appellants. It deserves to be mentioned here that the said confessional statements were recorded by Shri R.K. Gulati, Assistant Collector. He was duly cross-examined by the counsel for the appellants. From the tenor of the cross-examination it is clear that it was not the case of the appellants that any threat or inducement was given by Shri R.K.Gulati or coercion was used by him for making the confessional statements. On the other hand, a vague suggestion was thrown to him that the said statements were given by the appellants under threat, inducement and coercion by the officers of the Customs before they were produced before him for recording the statements, to which, he candidly replied, "it is also incorrect to suggest that the statements were given by these persons under threat, inducement and coercion by the officers of Customs before they were produced before him." It deserves to be mentioned here that Shri Gulati was not a member of the Preventive party who effected the seizure. A mere suggestion without evidence and that too without disclosing the nature of the alleged threat/inducement or coercion and the person -who is said to have exercised the alleged threat, inducement or coercion leads nowhere and cannot by any stretch of imagination be said to be proved nor such a vague suggestion makes the confessional statement involuntary.
7. Apart from the said evidence on record, we also find some telltale circumstances on record which conclusively prove that the contraband goods were recovered from the appellants. To wit, it is an admitted fact that both the appellants who are husband and wife went on a trip to Bangkok and they left India on 11.4.80 and came back on 15.5.80 and hold Indian passports. It is the case of the Department that at the time of interception of the appellants, Shri Avtar Singh, who was carrying one attache case of khaki colour with a round Zip as his baggage and out of this baggage the part of. the contraband goods was recovered. Similarly, his wife Smt. Mohinder Kaur's - also appellant herein - baggage also consisted of one attache case and one big hand bag, both of raxin clothes with a round Zips and out of these rest of the contraband goods were recovered. Apposite to it, the case of the appellants is that when they were going towards a taxi parked outside the International Arrival Hall at Delhi Airport, two persons who were already in the taxi before the appellants took their seats therein escaped on seeing the officers of Customs presumably leaving the goods behind in the taxi and the Customs officers planted the recovery of the said goods on the appellants. It is not the case of the appellants that any other goods or luggage besides the said baggage out of which contraband goods were recovered was found in the taxi. It is also not the case of the appellant that besides the baggage, that it is to say one attache case and one big ' hand bag found with the appellant Smt.
Mohinder Kaur and another attache case found with the appellant, Shri Avtar Singh, they were also carrying any other baggage. Besides the absence of the said defence of the appellants there is also nothing on the record to show that the appellants were also carrying any other baggage. This circumstance goes to the rest of the case and lends support to the conclusion that the contraband goods were recovered from the baggage of the appellants. Had it not been so the appellants would have definitely taken a plea in their defence that their baggage was also lying in the taxi or at least with them at the time when the other two persons said to have been occupying the taxi escaped with their baggage at the time when they were intercepted. The absence of any other baggage with the appellants not only strengthens the case of the Department but also makes the defence of the appellants highly improbable because once it is admitted to the appellants that they had gone on a visit to Bangkok definitely they must be carrying some luggage/baggage with them and the absence of any other luggage/ baggage proves that the seized two attache and a hand bag out of which contraband goods were recovered were the baggages of the appellants and none else.
8. Before we part with the discussion of the ocular and documentary evidence on record we also find that the circumstances available on record as stated, above also satisfactorily proves the guilt of the appellants. The confessional statements of S/Shri Manohar Singh and Hans Raj involving the appellants, who were also tried along with the appellants during the adjudicating proceedings and were found guilty and penalised and against that order appeal was filed by them also lends further assurance to our said conclusion.
9. Looking to the facts and circumstances of the case and the small amount of penalty which is Rs. 5,000/- each, the only other surviving contention of the learned counsel for the appellants that penalty is harsh is only to be stated to be rejected.